State v. Gilmore

156 So. 3d 46, 2011 La.App. 4 Cir. 1606, 2013 WL 476008, 2013 La. App. LEXIS 206
CourtLouisiana Court of Appeal
DecidedFebruary 8, 2013
DocketNo. 2011-KA-1606
StatusPublished
Cited by6 cases

This text of 156 So. 3d 46 (State v. Gilmore) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gilmore, 156 So. 3d 46, 2011 La.App. 4 Cir. 1606, 2013 WL 476008, 2013 La. App. LEXIS 206 (La. Ct. App. 2013).

Opinion

ROLAND L. BELSOME, Judge.

hThe defendant, Darnell Gilmore, appeals his conviction and life sentence for second degree murder, asserting that the trial court incorrectly denied his motions to suppress statements and identification. The defendant’s conviction and sentence are affirmed.

PROCEDURAL HISTORY

On June 23, 2005, the State obtained an indictment charging the defendant with first degree murder of Alissa Kovash.1 The defendant subsequently pled not guilty to the charge. The court heard the defendant’s motion to suppress the identification on February 6, 2007, but it is unclear when the court denied the motion. The court denied the defendant’s motion to suppress his statement on October 15, 2009.

The first trial ended in a mistrial, and the State later amended the charge to second degree murder. At the conclusion of the second trial, a twelve-person jury found the defendant guilty as charged. The court denied the defendant’s motions 12for post-verdict judgment of acquittal and for a new trial. The defendant waived all delays, and the court sentenced him to life imprisonment without benefit of parole or suspension of sentence. After denying the defendant’s motion for reconsideration of sentence, the court granted his timely motion for appeal.

FACTS

On April 18, 2005, the victim, Alissa Kovash, was murdered while walking with her friend Stephanie Knight to Knight’s apartment. The two were approached by Ahmad Hill and the defendant, Darnell Gilmore. While attempting to take the victim’s purse, the defendant hit the victim with a beer bottle and shot her in the head. The two men then fled with both of the women’s purses, entered into a stolen Jeep driven by Marcus Pleasant, and sped away.

Pursuant to the police investigation, Gilmore gave a statement to the police.2 Ms. Knight also identified the defendant in a photographic lineup. The defendant asserts assignments of error related to his statement and identification.

ERRORS PATENT

A review of the record reveals two patent errors, which do not require correction.

First, the record does not reflect that defendant was arraigned on the [50]*50amended charge. Failure to arraign the defendant or the fact that he did not plead is waived if he enters upon the trial without objection. It is considered as if he had pleaded not guilty. La. C.Cr.P. art. 555; State v. Scott, 97-28 (La.App. 4 Cir. 3/18/98), 709 So.2d 339, 342 (citation omitted). The record does not reflect that any objections regarding arraignment were made prior to trial. Therefore, any error with regard to the trial court’s failure to arraign the defendant was waived.

Next, the mandatory life sentence imposed was illegally lenient. The sentence was to be served without benefit of probation, parole or suspension of sentence pursuant to La. R.S. 14:30.1(B). However, the sentencing transcript reflects that the sentences at hard labor were to be served without benefit of parole or suspension of sentence. Notably, the minute entry reflects the proper restriction of all three benefits; however, the transcript prevails. State v. Washington, 05-431, p. 6 (La.App. 4 Cir. 12/7/05), 921 So.2d 139, 143.

La. R.S. 15:301.1(A) provides that “[t]he failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of parole, probation or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without the benefit of parole, probation or suspension of sentence.” La. R.S. 15:301.1(A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court, and this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence resulting from the failure of the sentencing court to impose the restrictions. State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799; State v. Boudreaux, 07-89, p. 3 (La.App. 4 Cir. 8/15/07), 966 So.2d 79, 81-82, writ denied, 07-1936 (La.2/1/08), 976 So.2d 717.

\ ¿DISCUSSION

In his first assignment of error, the defendant contends that the trial court erred by denying his motion to suppress his statement. He argues that the State failed to show that his statement was voluntarily and freely given.

Pursuant to La.C.Cr.P. art. 703(D), the State had the burden of showing that the defendant’s statements were admissible. In addition, La. R.S. 15:451 provides: “Before what purports to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” See State v. Gradley, 97-641, p. 9 (La.5/19/98), 745 So.2d 1160, 1166; State v. Butler, 04-880, p. 4 (La.App. 4 Cir. 1/12/05), 894 So.2d 415, 418. As noted in State v. Vigne, 01-2940, p. 6 (La.6/21/02), 820 So.2d 533, 537, in order for a statement made by a suspect in custody to be admissible at trial, police officers must advise the suspect of his Fifth Amendment rights prior to interrogating him.

We review a trial court’s ruling on a motion to suppress under the abuse of discretion standard. State v. Wells, 08-2262, pp. 4-5 (La.7/6/10), 45 So.3d 577, 581 (citation omitted). Generally, a trial court’s ruling on a motion to suppress a statement is entitled to great weight and will not be disturbed unless clearly unsupported by the evidence. Id.

In support of his motion to suppress, the defendant argues three points. One, he was not advised of his rights. Two, he was restrained during the interrogation. LThree, the statement was not voluntary [51]*51as he was beaten, burned, and forced to provide a statement crafted by the officers.

With respect to the failure to advise him of his rights, Sergeant Joseph Catalanotto of the New Orleans Police Department testified both at the suppression hearing and at trial that either he or Detective Guillory advised the defendant of his rights prior to taking his statement, and Gilmore indicated he understood his rights and agreed to waive them. A recording of the statement also confirms that the defendant was advised of and waived his rights.

The defendant’s second claim that he was restrained by the officers during his statement was disputed by the testimony of Detective Roger Gorumba of the Jefferson Parish Sheriffs Office. He testified that although the defendant was handcuffed on his way to the Detective Bureau and on his way back to the Correctional Center, he took the handcuffs off of the defendant when he placed him in the interview room.

Finally, despite the allegations by the defendant that he was beaten by the detectives and coerced into giving his statement, the State produced sufficient evidence to discredit this allegation thus satisfying the court that the defendant’s statement was voluntary. Both at the suppression hearing and at the trial, Sergeant Catalanotto denied that either he or Detective Guillory beat or burned the defendant. At trial, the defendant introduced photographs of burn marks on his arms as evidence that he had been beaten.3

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Bluebook (online)
156 So. 3d 46, 2011 La.App. 4 Cir. 1606, 2013 WL 476008, 2013 La. App. LEXIS 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gilmore-lactapp-2013.